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Hermsen v. City of Kansas City

United States District Court, W.D. Missouri, Western Division

March 10, 2017

MARISSA D. HERMSEN, Plaintiff,
v.
CITY OF KANSAS CITY, MISSOURI, et al., Defendants.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the Court is Defendants' Motion for Summary Judgment (Doc. No. 27).

         I. Background

         Plaintiff was a paramedic employed by defendant City through May of 2014. In July of 2011, Plaintiff filed a lawsuit against the City under the Fair Labor Standards Act (“FLSA”), claiming that defendant failed to properly calculate overtime payments for paramedics and EMTs. Plaintiff claims in the present case that, beginning at the time she filed her FLSA case, defendants began to target her in retaliation, ultimately resulting in her termination. In the current suit, plaintiff brings two claims: Count I, FLSA Retaliation; and Count II, Wrongful Discharge.

         Defendants City of Kansas City, Missouri (“City”) and Paul Berardi (“Berardi”) move for summary judgment on the following bases: (1) Plaintiff cannot satisfy the McDonnell-Douglas burden shifting analysis to show retaliation; (2) Plaintiff cannot sustain her wrongful discharge claims against the City due to sovereign immunity or against Defendant Berardi due to the lack of employer/employee relationship, official immunity, and qualified immunity; and (3) punitive and emotional distress damages are unavailable under the FLSA rubric. In her response, plaintiff withdraws her wrongful discharge claims in Count II; however, plaintiff maintains that questions of material fact remain for trial on her FLSA retaliation claims, and her claims for punitive damages and emotional distress damages are not precluded by the FLSA.

         II. Facts

         Hermsen was employed by Metropolitan Ambulance Services Trust (“MAST”) from 2003 until 2010 when MAST merged with KCFD. Plaintiff was then employed as a paramedic with the City of Kansas City, Missouri from April 2010 through May of 2014.

         Sometime before March 7, 2011, Hermsen spoke to Lisa Minardi, Councilman Ed Ford's Assistant, concerning her intention to blow the whistle on the City for FLSA violations. Lisa Minardi was married to Paul Ferguson, who worked at Hermsen's fire station. Hermsen gave Minardi a document titled, Violations of FLSA Committed by KCFD concerning Ambulance Personnel and the Inevitable Financial Liability to Kansas City (“Warning Paper”), to give to Councilman Ford. (Warning Paper, Ex. 21 to Doc. No. 31); (Hermsen Dep., Ex. 1 at 16:13-18:24). Hermsen told paramedic supervisors Scott Raak and Laura Sanchen; her partners, Andrew Hanchette and Chad Huismann; and Michael Cambiano, International Association Fire Fighters Local No. 42 (“Union”) Administrator; that she was going to give the Warning Paper to Lisa Minardi. Between March 2011 and July 29, 2011, Hermsen was blamed in union meetings and elsewhere for starting an investigation into the legality of the 24-hour shift for paramedics and EMTs.

         FLSA Action

         On July 29, 2011, Plaintiff became the named plaintiff in a FLSA action filed in the Western District of Missouri which sought damages for the City's failure to pay paramedics and EMTs appropriate overtime wages. A second named plaintiff, Andrea Armillio, joined the FLSA lawsuit on August 15, 2011. The command staff was disappointed about the filing of the FLSA suit. According to Dyer's deposition, the suit turned back six months of the work that had been done. Captain Wright sent correspondence and had conversations with Chief Dyer and others at the City indicating his belief that the 24-hour shift policy for EMS units did not violate the FLSA, and on October 28, 2011, the Union filed a Motion to Intervene in plaintiff's FLSA action. (Civil Docket for Case No. 4:11-cv-00753-BP, Ex. 27). Chief Dyer and Chief Berardi were heavily involved in the integration of MAST personnel, including the 24-hour shift that became the subject of Hermsen's FLSA lawsuit. (Dyer Dep., Ex. 17 at 69:14-24, and 72:10-73:11).

         On September 24, 2012, Judge Beth Phillips granted in part Plaintiffs' Motion to Certify the Class in the lawsuit against the City, with Plaintiff serving as the class representative for paramedics and Andrea Armilio as the class representative for EMTs. On May 15, 2013, Plaintiff filed her Second Phase (liability) Discovery Requests on the City in the FLSA lawsuit which were returned December 19, 2013. On July 22, 2013, Chief Berardi was deposed in plaintiff's FLSA suit. Hermsen attended Chief Berardi's deposition. On or about January 8, 2014, Plaintiff filed a Motion for Partial Summary Judgment as to liability in the FLSA lawsuit. On or about April 7, 2014, Plaintiff moved for leave to file supplemental authority in the FLSA lawsuit that rejected the City's defense. On June 25, 2014, the Court granted Plaintiff's Motion for Summary Judgment as to Liability in the FLSA lawsuit. (Civil Docket, No. 4:11-cv-00753, Ex. 27).

         A second FLSA class action was brought for the purpose of including those class members entitled to relief but who failed to opt in to the first class action. The named plaintiff in the second FLSA lawsuit was Diana Frisbee. In all, 244 paramedics and EMTs received compensation under the two lawsuits. All but six of those 244 paramedics and EMTs are still employed by the City, have retired, died, or have voluntarily resigned from the fire department. Of the six that were terminated, two were terminated for misconduct; two abandoned their job and were terminated; one was unable to perform the physical requirements of the job; and one was terminated after a felony conviction yielding a three-year prison sentence.

         The Fire Department

         When Plaintiff joined the fire department in 2010, Chief Richard Dyer was the fire chief. In July 2012, Chief Dyer retired. Defendant Berardi was appointed interim fire chief in August 2012, and in January 2013, Defendant Berardi became the fire chief.

         Defendant City's Disciplinary System

         The Fire Chief is primarily responsible for serving as the hearing officer in all disciplinary matters involving fire personnel and usually knows of all discipline administered. During predetermination hearings, those facing discipline are afforded the right to be represented by counsel and the Union, to present evidence, to call and cross-examine witnesses, and make opening and closing statements.[1] An employee, if he or she has been demoted, suspended, or terminated, is able to appeal the predetermination hearing decision to the Human Resources Board. Ex. I, Kansas City Charter, § 901(b)(1). The Human Resources Board may administer oaths, compel the production of evidence, and compel the attendance of witnesses. Ex. I, § 907(c); Ex. J, Rules and Regulations of the Human Resources Board, §§ 9, 14. A hearing before the Human Resources Board is recorded by a court reporter and the hearing is conducted in accordance with the contested case rules of procedure set forth in Chapter 536 of the Missouri Revised Statutes. Ex. J, §§ 13, 16. Disciplined employees are able to appeal the decision of the Human Resources Board to the City Manager. Ex. I, § 907(f). The City Manager may affirm, change, modify or reverse decisions of the Human Resources Board.

         The City's Whistleblower Protection Ordinance prohibits disciplinary action against City employees for reporting violations of law. (Ordinance No. 990311, Ex. 18). Chief Berardi is required to investigate all allegations of retaliation. The City also has to report allegations of harassment to the EEO office. Chief Berardi has never disciplined anyone for failing to report a complaint of discrimination, harassment or retaliation under the reporting requirement. The City's Discipline policy lists causes for disciplinary action that include, but are not limited to, offensive behavior, offensive language, and discrimination. Offensive conduct that is prohibited by includes “being boisterous towards your supervisor, using foul language in an aggressive manner, throwing things, refusing to follow an order . . . being rude not only to your supervisor, but to a peer employee …” It is also a violation of the disciplinary policy to file a false complaint. Disruptive conduct is also prohibited. The City's policy also prohibits harassment or intimidation that is recurrent in nature and/or having a detrimental effect on the employee's employment situation. The City has a zero-tolerance policy regarding threats or acts of violence and “any employee . . . who makes a threat of physical violence . . . will be dealt with immediately.” (City of Kansas City Human Resources Rules & Policy Manual, Ex. 20 at Appendix I).

         Plaintiff's Disciplinary History

         After Notifying Councilman Ford, but Before Filing Lawsuit

         On June 6, 2011, plaintiff responded to a motor vehicle accident involving an elderly woman, who had been t-boned but exhibited no symptoms. Plaintiff photographed the car, allegedly to show the ER physician the mechanism of injury. Because of this incident, a supervisor argued with her at the scene. On or about June 15, 2011, Plaintiff was disciplined for failure to use proper titles and being disrespectful of her supervisor; failure to obey a lawful order of her superior; and taking photographs of the accident in violation of the Fire Department's General Administrative Guidelines. Ex. K, Resolution of Personnel Matter, ¶¶ 1-3. Plaintiff received a twelve-hour suspension for her actions on June 6, 2011. Ex. K, ¶ 5. The June 6, 2011 incident was the first time Hermsen was disciplined by KCFD.

         On June 15, 2011, Plaintiff was involved in an altercation with a co-worker. Plaintiff asserted that her co-worker Wayne Ashurst had been rude to her for weeks prior and was the aggressor when he yelled at her while retrieving supplies “Get the f--- out of my office, ” and they then exchanged words. Plaintiff's Ex. 3. For her part in this matter, plaintiff received a written reprimand. Ex. K, ¶ 6. With respect to this matter, Plaintiff waived her rights to a predetermination hearing and other remedies that she may have had available to her. Ex. K, ¶¶ 7, 8.[2]

         On June 30, 2011, Plaintiff left the station she was assigned to in order to go home; as a result, the ambulance she was stationed on missed a call. Ex. L, Human Resources Board decision, Case No. 11-32, ¶ 2. Plaintiff asserted that she had received permission from her direct supervisor, Paul Ferguson, on that date to tend to a personal matter. On August 4, 2011, Plaintiff attended a predetermination hearing concerning the June 2011 absence from work. On August 25, 2011, Chief Dyer recommended in his predetermination hearing report that Plaintiff be suspended for 24 hours. On September 1, 2011, Ms. Hermsen appealed the August 25, 2011 predetermination hearing report to the Human Resources Board. On March 13, 2012, the Human Resources Board held its hearing. The Human Resources Board ruled on May 8, 2012 that Plaintiff “did not properly follow the Fire Department's chain of command as set forth in the Fire Department's Rules.” Ex. L, p. 3 ¶ 4. The Human Resources Board, however, found that Plaintiff “believed the captain of whom she asked permission to leave had the authority to grant her request.” Ex. L, p. 3, ¶ 2. The Human Resources Board overturned the suspension recommended by Chief Dyer and, instead, reduced the suspension to a letter of reprimand and counseling. Plaintiff received a letter of reprimand and counseling for this incident on May 15, 2012. Plaintiff did not appeal the decision of the Human Resources Board concerning the June 2011 absence to the City Manager.

         After filing FLSA Action

         On or about December 11, 2012, Plaintiff responded to a medical call in an auditorium involving a female patient that fainted during a play. The following day, a Battalion Chief filed a complaint against Plaintiff because she did not “run” down the aisle to render aid. The City conducted a fact-finding into the complaint about the December 11 incident. Plaintiff was cleared of any wrongdoing and did not receive discipline for the December 11, 2012 call.

         On January 31, 2013, Plaintiff received an oral reprimand for failing to report an accident to her supervisor and for failing to notify her supervisor of damage to City property. Ex. P, Memorandum of Oral Reprimand. As described by plaintiff, during a huge snow storm, Hermsen was riding in the ambulance with her partner, Andrea Armilio. Ms. Armilio slid off the road and went up a curb. While waiting for the tow truck Armilio and Hermsen got the ambulance off the curb. Hermsen and Armilio did not notice that snow had knocked the running board loose until they returned to the station. They continued to run calls for the next thirteen hours and the incident was verbally reported to a supervisor. (Hearing of May 14, 2014, Ex. 6 at 109:7 - 110:23). Plaintiff did not appeal the oral reprimand. Ex. E, ¶ 12.

         On June 12, 2013, Plaintiff threw a water bottle at her supervisor, Brenda Paikowski. Doc. 1, ¶ 32; Ex. Q, 8/5/13 Predetermination report, p. 1. Plaintiff characterizes this incident as horseplay; however, plaintiff was investigated for committing a “violent act”. On July 24, 2013, a predetermination hearing was held for the water bottle incident. On August 5, 2013, Defendant Berardi issued a predetermination hearing report that found Plaintiff “engag[ed] in offensive conduct toward another member of the Department when, at the Eastwood facility on June 12, 2013, Hermsen threw an object at Assistant Division Chief Brenda Paikowski which struck her on the leg.” Ex. Q, p. 4. In his report, Defendant Berardi recommended that Plaintiff receive a 26.6 hour suspension, but that the suspension would be held in abeyance and shall not be served if Plaintiff participates in an Employee Assistance Program for Anger Management. Ex. E, ¶ 13; Ex. Q, p. 4-5. Plaintiff did not appeal the June 2013 water bottle incident to the Human Resources Board. Ex. E, ¶ 14; Ex. O, 91:5-14. On January 21, 2014, Assistant Chief Pat Reisenbichler emailed the EAP provider and asked “to delay the release of Marissa from the EAP mandate, ” despite the fact that Hermsen successfully completed EAP counseling on December 9, 2013. (EAP Progress Report of January 21, 2014, Ex. 43); (EAP Management Referral Update, Ex. 39).

         On or about December 7, 2013, Plaintiff responded to a multi-vehicle fatality crash at 12th and Hardesty. Doc. 1, ¶ 38. The scene was a chaotic mess with three paramedics working on a deceased motorist while neglecting two other patients, and therefore Hermsen grabbed one of the paramedics on the scene (Elizabeth Bechtold) to communicate with her about the other patients. After Ms. Hermsen transported her patient to Truman Medical Center (“Truman”) she saw Paramedic Jonathon Koen who was visibly upset. (Email of Dec. 9, 2013, from Hermsen to Latta and David Dexter, Ex. 40). A Truman nurse approached Hermsen and informed her that Koen accused Hermsen of putting her hands on a co-worker at the fatality accident scene. Hermsen went to the Truman garage and asked Koen what was going on. Paramedic Koen yelled at Ms. Hermsen, standing only inches from her face and said, “I saw what you did, fucking jerking her around and grabbing her. You have no right to touch her or any other co-worker. Don't you ever let me see you lay a hand on anyone again or next time I'm going to get involved and take care of it myself! She was my student last year and you better not ever touch her again or it's me you're going to deal with.” Hermsen tried to reason with Paramedic Koen, but he lunged at her forcing her back and trapped her against the cement pillar in the garage and the ambulance. Plaintiff asserts that her written complaint against Paramedic Jonathon Koen was the only pending complaint filed immediately after the fatality accident. Plaintiff states she called Bechtold later that evening, and Bechtold told her that she had no issue with her.

         On February 5, 2014, charges were brought against Hermsen for interfering with patient care and inappropriate conduct. After taking evidence on March 7, 2014, Defendant Berardi concluded that “while PM Hermsen feels it was appropriate to grab another employee to emphasize that she needed additional information about her patient, or to guide that employee through a narrow passage at an emergency scene, PM Bechtold, as well as other personnel on scene did not appreciate the gesture and felt it was inappropriate.” Ex. R, 3/10/14 Predetermination Decision, p. 2. Plaintiff received a written reprimand for grabbing PM Bechtold. Ex. R, p.2.

         On February 17, 2014, plaintiff went to Station 18 and had a conversation with Elizabeth Bechtold about the December 7, 2013 incident. Plaintiff and defendants dispute whether plaintiff was told prior to this incident to refrain from speaking with those who responded to the December 7, 2013 accident scene. While Hermsen spoke to Bechtold, Paramedic Schimming came across the bay, shouted vulgarities and stepped about two feet in front of Ms. Hermsen's face in a threatening manner and demanded that Ms. Hermsen leave the station. (Hearing of May 14, 2014, Ex. 6 at 33:24-34:4 and 134:6-135:4). On February 21, 2014, Ms. Hermsen learned that charges were filed against her for engaging in offensive conduct and interfering with a witness due to her conversation with Ms. Bechtold. (Fact Finding of Feb. 21, 2014, Ex. 45).

         On March 17, 2014, Chief Berardi issued a Predetermination Hearing letter to Hermsen charging her with hindering the effective performance of a municipal government function and engaging in offensive conduct due to her questioning of Bechtold on February 17, 2014. On April 11, 2014, Chief Berardi notified Hermsen that she was immediately suspended without pay and would be terminated in seven days for the charge of engaging in offensive conduct and hindering the effective performance of a City function.

         On April 14, 2014, Hermsen appealed Chief Berardi's termination of her employment to the HR Board. On May 14, 2014, the Human Resources Board conducted a hearing into the February 2014 confrontation. Ex. S, Human Resources Board decision, Case No. 14-06, p. 1. The Appeal before the City's Board concerning Hermsen's termination included a charge for abuse or improper treatment of a person in custody and conduct that was disruptive or caused deficiencies in the workplace. These two charges were not included in Chief Berardi's termination letter. The KCFD does not have arrest capability. There were no inefficiencies that occurred due to Hermsen's two minute conversation with Elizabeth Bechtold.

         On August 11, 2014, the HR Board upheld Hermsen's termination. The Human Resources Board found that “[p]rior to [Ms. Hermsen's] predetermination hearing regarding the December [2013] incident, at which [Ms. Bechtold] would be called to testify, [Ms. Hermsen] confronted [Ms. Bechtold] on February 17, 2014, at Fire Station 18 and demanded to talk about such incident. [Ms. Bechtold] told [Ms. Hermsen] that she did not want to discuss the December incident but [Ms. Hermsen] continued to attempt to engage [Ms. Bechtold] in a discussion of such incident.” Ex. S, p. 2, ¶ 2. As a result of these findings, the Human Resources Board determined that Plaintiff violated Fire and City rules “by her offensive behavior and by engaging in conduct intended to obstruct a predetermination hearing when she knew, or should have ...


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